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PART 60-300--AFFIRMATIVE ACTION AND NONDISCRIMINATION
OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS
REGARDING DISABLED VETERANS, RECENTLY SEPARATED VETERANS,
ACTIVE DUTY WARTIME OR CAMPAIGN BADGE VETERANS, AND
ARMED FORCES SERVICE MEDAL VETERANS
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-300.1 Purpose, applicability and construction.
60-300.2 Definitions.
60-300.3 [Reserved].
60-300.4 Coverage and waivers.
60-300.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-300.20 Covered employment activities.
60-300.21 Prohibitions.
60-300.22 Direct threat defense.
60-300.23 Medical examinations and inquiries.
60-300.24 Drugs and alcohol.
60-300.25 Health insurance, life insurance and other benefit plans.
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Subpart C--Affirmative Action Program
60-300.40 Applicability of the affirmative action program requirement.
60-300.41 Availability of affirmative action program.
60-300.42 Invitation to self-identify.
60-300.43 Affirmative action policy.
60-300.44 Required contents of affirmative action programs.
60-300.45 Benchmarks for hiring.
Subpart D--General Enforcement and Complaint Procedures
60-300.60 Compliance evaluations.
60-300.61 Complaint procedures.
60-300.62 Conciliation agreements.
60-300.63 Violation of conciliation agreements.
60-300.64 Show cause notices.
60-300.65 Enforcement proceedings.
60-300.66 Sanctions and penalties.
60-300.67 Notification of agencies.
60-300.68 Reinstatement of ineligible contractors.
60-300.69 Intimidation and interference.
60-300.70 Disputed matters related to compliance with the Act.
Subpart E--Ancillary Matters
60-300.80 Recordkeeping.
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60-300.81 Access to records.
60-300.82 Labor organizations and recruiting and training agencies.
60-300.83 Rulings and interpretations.
60-300.84 Responsibilities of local employment service offices.
Appendix A to Part 60-300--Guidelines on a Contractor’s Duty to Provide Reasonable
Accommodation
Appendix B to Part 60-300--Sample Invitation to Self-Identify
Appendix C to Part 60-300--Review of Personnel Processes
Authority: 29 U.S.C. 793; 38 U.S.C. 4211 and 4212; E.O. 11758 (3 CFR, 1971-1975
Comp., p. 841).
Subpart A — Preliminary Matters, Equal Opportunity Clause
§ 60-300.1 Purpose, applicability and construction.
(a) Purpose. The purpose of the regulations in this part is to set forth the standards for
compliance with the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as
amended, 38 U.S.C. 4212, (VEVRAA), which prohibits discrimination against protected
veterans and pre-JVA veterans as defined in this part, and requires Government
contractors and subcontractors to take affirmative action to employ and advance in
employment qualified protected veterans.
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Disabled veterans, recently separated veterans, active duty wartime or campaign badge
veterans, and Armed Forces service medal veterans are protected veterans under
VEVRAA.
(b) Applicability. This part applies to any Government contract or subcontract of
$100,000 or more, entered into or modified on or after December 1, 2003, for the
purchase, sale or use of personal property or nonpersonal services (including
construction): Provided, that subpart C of this part applies only as described in § 60-
300.40(a); and that the non-discrimination protections in § 60-300.21 and the right to file
complaints alleging discriminatory conduct set forth in § 60-300.61 also apply to “pre-
JVA veterans” as defined in § 60-300.2, who are applicants or employees of a contractor
with a Government contract of $25,000 or more entered into prior to December 1, 2003,
and unmodified since to a contract amount of $100,000. Compliance by the contractor
with the provisions of this part will not necessarily determine its compliance with other
statutes, and compliance with other statutes will not necessarily determine its compliance
with this part.
(c) Construction--(1) In general. The Interpretive Guidance on Title I of the
Americans with Disabilities Act (ADA) (42 U.S.C. 12101, et seq.) set out as an appendix
to 29 CFR part 1630 issued pursuant to Title I may be relied upon for guidance in
interpreting the parallel provisions of this part.
(2) Relationship to other laws. This part does not invalidate or limit the remedies,
rights, and procedures under any Federal law or the law of any state or political
subdivision that provides greater or equal protection for the rights of disabled veterans,
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recently separated veterans, active duty wartime or campaign badge veterans, or Armed
Forces service medal protected veterans as compared to the protection afforded by this
part. It may be a defense to a charge of violation of this part that a challenged action is
required or necessitated by another Federal law or regulation, or that another Federal law
or regulation prohibits an action (including the provision of a particular reasonable
accommodation) that would otherwise be required by this part.
(i) Uniformed Services Employment and Reemployment Rights Act. This part does
not invalidate or limit the obligations, responsibilities, and requirements of the contractor
pursuant to the Uniformed Services Employment and Reemployment Rights Act
(USERRA) (38 U.S.C. 4301, et seq.). This includes the obligation under USERRA to
reemploy employees of the contractor following qualifying service in the uniformed
services in the position the employee would have obtained with reasonable certainty had
the employee been continuously employed during the period of uniformed service.
Compliance by the contractor with the provisions of this part will not necessarily
determine its compliance with USERRA, and compliance with USERRA will not
necessarily determine its compliance with this part.
§ 60-300.2 Definitions.
For the purpose of this part:
(a) Act means the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as
amended, 38 U.S.C. 4212, also referred to throughout this regulation as “VEVRAA.”
(b) Active duty wartime or campaign badge veteran means a veteran who served on
active duty in the U.S. military, ground, naval or air service during a war or in a
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campaign or expedition for which a campaign badge has been authorized, under the laws
administered by the Department of Defense.
(c) Armed Forces service medal veteran means any veteran who, while serving on
active duty in the U.S. military, ground, naval or air service, participated in a United
States military operation for which an Armed Forces service medal was awarded pursuant
to Executive Order 12985 (61 FR 1209).
(d) Compliance evaluation means any one or combination of actions OFCCP may take
to examine a Federal contractor’s or subcontractor’s compliance with one or more of the
requirements of the Act.
(e) Contract means any Government contract or subcontract.
(f) Contractor means, unless otherwise indicated, a prime contractor or subcontractor
holding a contract of $100,000 or more.
(g) Direct threat means a significant risk of substantial harm to the health or safety of
the individual or others that cannot be eliminated or reduced by reasonable
accommodation. The determination that an individual poses a direct threat shall be based
on an individualized assessment of the individual’s present ability to perform safely the
essential functions of the job. This assessment shall be based on a reasonable medical
judgment that relies on the most current medical knowledge and/or on the best available
objective evidence. In determining whether an individual would pose a direct threat, the
factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
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(4) The imminence of the potential harm.
(h) Director means the Director, Office of Federal Contract Compliance Programs of
the United States Department of Labor, or his or her designee.
(i) Disabled veteran means:
(1) A veteran of the U.S. military, ground, naval or air service who is entitled to
compensation (or who but for the receipt of military retired pay would be entitled to
compensation) under laws administered by the Secretary of Veterans Affairs, or
(2) A person who was discharged or released from active duty because of a service-
connected disability.
(j) Employment service delivery system means a service delivery system at which or
through which labor exchange services, including employment, training, and placement
services, are offered in accordance with the Wagner-Peyser Act. The Wagner-Peyser Act
requires that these services be provided as part of the One-Stop delivery system
established by the States under Section 134 of the Workforce Investment Act of 1998.
(k) Equal opportunity clause means the contract provisions set forth in § 60-300.5,
“Equal opportunity clause.”
(l) Essential functions—(1) In general. The term essential functions means
fundamental job duties of the employment position the disabled veteran holds or is
seeking. The term essential functions does not include the marginal functions of the
position.
(2) A job function may be considered essential for any of several reasons, including,
but not limited to, the following:
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(i) The function may be essential because the reason the position exists is to perform
that function;
(ii) The function may be essential because of the limited number of employees
available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is
hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The contractor’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for
the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(m) Government means the Government of the United States of America.
(n) Government contract means any agreement or modification thereof between any
contracting agency and any person for the purchase, sale or use of personal property or
nonpersonal services (including construction). The term Government contract does not
include agreements in which the parties stand in the relationship of employer and
employee, and federally assisted contracts.
(1) Construction, as used in the definition of Government contract and subcontract of
this section, means the construction, rehabilitation, alteration, conversion, extension,
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demolition, or repair of buildings, highways, or other changes or improvements to real
property, including facilities providing utility services. The term also includes the
supervision, inspection, and other on-site functions incidental to the actual construction.
(2) Contracting agency means any department, agency, establishment or
instrumentality of the United States, including any wholly owned Government
corporation, which enters into contracts.
(3) Modification means any alteration in the terms and conditions of a contract,
including supplemental agreements, amendments and extensions.
(4) Nonpersonal services, as used in the definition of Government contract and
subcontract of this section, includes, but is not limited to, the following: Utility,
construction, transportation, research, insurance, and fund depository.
(5) Person, as used in the definition of Government contract and subcontract of this
section, means any natural person, corporation, partnership or joint venture,
unincorporated association, state or local government, and any agency, instrumentality, or
subdivision of such a government.
(6) Personal property, as used in the definition of Government contract and
subcontract of this section, includes supplies and contracts for the use of real property
(such as lease arrangements), unless the contract for the use of real property itself
constitutes real property (such as easements).
(o) Pre-JVA veteran means an individual who is an employee of or applicant to a
contractor with a contract of $25,000 or more entered into prior to December 1, 2003 and
unmodified since to $100,000 or more, and who is a special disabled veteran, veteran of
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the Vietnam era, pre-JVA recently separated veteran, or other protected veteran, as
defined below:
(1) Special disabled veteran means:
(i) A veteran who is entitled to compensation (or who but for the receipt of
military retired pay would be entitled to compensation) under laws administered by the
Department of Veterans Affairs for a disability:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been determined
under 38 U.S.C. 3106 to have a serious employment handicap; or
(ii) A person who was discharged or released from active duty because of a
service-connected disability.
(2) Veteran of the Vietnam Era means a person who:
(i) Served on active duty for a period of more than 180 days, and was discharged
or released therefrom with other than a dishonorable discharge, if any part of such active
duty occurred:
(A) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(B) Between August 5, 1964, and May 7, 1975, in all other cases; or
(ii) Was discharged or released from active duty for a service-connected disability
if any part of such active duty was performed:
(A) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(B) Between August 5, 1964, and May 7, 1975, in all other cases.
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(3) Pre-JVA recently separated veteran means a pre-JVA veteran during the one-year
period beginning on the date of the pre-JVA veteran’s discharge or release from active
duty.
(4) Other protected veteran means a person who served on active duty during a war or
in a campaign or expedition for which a campaign badge has been authorized, under the
laws administered by the Department of Defense.
(p) Prime contractor means any person holding a contract of $100,000 or more, and, for
the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,”
includes any person who has held a contract subject to the Act.
(q) Protected veteran means a veteran who is protected under the non-discrimination
and affirmative action provisions of the Act; specifically, a veteran who may be classified
as a “disabled veteran,” “recently separated veteran,” “active duty wartime or campaign
badge veteran,” or an “Armed Forces service medal veteran,” as defined by this section.
(r) Qualification standards means the personal and professional attributes including the
skill, experience, education, physical, medical, safety and other requirements established
by the contractor as requirements which an individual must meet in order to be eligible
for the position held or desired.
(s) Qualified disabled veteran means a disabled veteran who has the ability to perform
the essential functions of the employment position with or without reasonable
accommodation.
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(t) Reasonable accommodation—(1) The term reasonable accommodation means:
(i) Modifications or adjustments to a job application process that enable a qualified
applicant who is a disabled veteran to be considered for the position such applicant
desires; 1 or
(ii) Modifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed, that
enable a qualified disabled veteran to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor’s employee who is a
disabled veteran to enjoy equal benefits and privileges of employment as are enjoyed by
the contractor’s other similarly situated employees who are not disabled veterans.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and usable by
disabled veterans; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant
position; acquisition or modifications of equipment or devices; appropriate adjustment or
modifications of examinations, training materials, or policies; the provision of qualified
readers or interpreters; and other similar accommodations for disabled veterans.
(3) To determine the appropriate reasonable accommodation it may be necessary for
the contractor to initiate an informal, interactive process with the qualified disabled
1 A contractor’s duty to provide a reasonable accommodation with respect to applicants who are disabled
veterans is not limited to those who ultimately demonstrate that they are qualified to perform the job in
issue. Disabled veteran applicants must be provided a reasonable accommodation with respect to the application process if they are qualified with respect to that process (e.g., if they present themselves at the
correct location and time to fill out an application).
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veteran in need of the accommodation.2 This process should identify the precise
limitations resulting from the disability and potential reasonable accommodations that
could overcome those limitations. (Appendix A of this part provides guidance on a
contractor’s duty to provide reasonable accommodation.)
(u) Recently separated veteran means any veteran during the three-year period
beginning on the date of such veteran’s discharge or release from active duty in the U.S.
military, ground, naval or air service.
(v) Recruiting and training agency means any person who refers workers to any
contractor, or who provides or supervises apprenticeship or training for employment by
any contractor.
(w) Secretary means the Secretary of Labor, United States Department of Labor, or his
or her designee.
(x) Subcontract means any agreement or arrangement between a contractor and any
person (in which the parties do not stand in the relationship of an employer and an
employee):
(1) For the purchase, sale or use of personal property or nonpersonal services
(including construction) which, in whole or in part, is necessary to the performance of
any one or more contracts; or
(2) Under which any portion of the contractor’s obligation under any one or more
contracts is performed, undertaken, or assumed.
2 Contractors must engage in such an interactive process with a disabled veteran, whether or not a
reasonable accommodation ultimately is identified that will make the person a qualified individual.
Contractors must engage in the interactive process because, until they have done so, they may be unable to
determine whether a reasonable accommodation exists that will result in the person being qualified.
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(y) Subcontractor means any person holding a subcontract of $100,000 or more and, for
the purposes of subpart D of this part, “General Enforcement and Complaint Procedures,”
any person who has held a subcontract subject to the Act.
(z) TAP means the Department of Defense’s Transition Assistance Program, or any
successor programs thereto. The TAP was designed to smooth the transition of military
personnel and family members leaving active duty via employment workshops and
individualized employment assistance and training.
(aa) Undue hardship--(1) In general. Undue hardship means, with respect to the
provision of an accommodation, significant difficulty or expense incurred by the
contractor, when considered in light of the factors set forth in paragraph (2) of this
section.
(2) Factors to be considered. In determining whether an accommodation would
impose an undue hardship on the contractor, factors to be considered include:
(i) The nature and net cost of the accommodation needed, taking into consideration the
availability of tax credits and deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities involved in the provision
of the reasonable accommodation, the number of persons employed at such facility, and
the effect on expenses and resources;
(iii) The overall financial resources of the contractor, the overall size of the business of
the contractor with respect to the number of its employees, and the number, type and
location of its facilities;
(iv) The type of operation or operations of the contractor, including the composition,
structure and functions of the work force of such contractor, and the geographic
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separateness and administrative or fiscal relationship of the facility or facilities in
question to the contractor; and
(v) The impact of the accommodation upon the operation of the facility, including the
impact on the ability of other employees to perform their duties and the impact on the
facility's ability to conduct business.
(bb) United States, as used in this part, shall include the several States, the District of
Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, and Wake Island.
(cc) Veteran means a person who served in the active military, naval, or air service of
the United States, and who was discharged or released therefrom under conditions other
than dishonorable.
§ 60-300.3 [Reserved]
§ 60-300.4 Coverage and waivers.
(a) General—(1) Contracts and subcontracts of $100,000 or more. Contracts and
subcontracts of $100,000 or more are covered by this part. No contracting agency or
contractor shall procure supplies or services in less than usual quantities to avoid the
applicability of the equal opportunity clause.
(2) Contracts for indefinite quantities. With respect to indefinite delivery-type
contracts (including, but not limited to, open end contracts, requirement-type contracts,
Federal Supply Schedule contracts, “call-type” contracts, and purchase notice
agreements), the equal opportunity clause shall be included unless the contracting agency
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has reason to believe that the amount to be ordered in any year under such contract will
be less than $100,000. The applicability of the equal opportunity clause shall be
determined at the time of award for the first year, and annually thereafter for succeeding
years, if any. Notwithstanding the above, the equal opportunity clause shall be applied to
such contract whenever the amount of a single order is $100,000 or more. Once the equal
opportunity clause is determined to be applicable, the contract shall continue to be subject
to such clause for its duration, regardless of the amounts ordered, or reasonably expected
to be ordered in any year.
(3) Employment activities within the United States. This part applies only to
employment activities within the United States and not to employment activities abroad.
The term “employment activities within the United States” includes actual employment
within the United States, and decisions of the contractor made within the United States
pertaining to the contractor’s applicants and employees who are within the United States,
regarding employment opportunities abroad (such as recruiting and hiring within the
United States for employment abroad, or transfer of persons employed in the United
States to contractor establishments abroad).
(4) Contracts with State or local governments. The requirements of the equal
opportunity clause in any contract or subcontract with a State or local government (or any
agency, instrumentality or subdivision thereof) shall not be applicable to any agency,
instrumentality or subdivision of such government which does not participate in work on
or under the contract or subcontract.
(b) Waivers—(1) Specific contracts and classes of contracts. The Director may waive
the application to any contract of the equal opportunity clause in whole or part when he
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or she deems that special circumstances in the national interest so require. The Director
may also grant such waivers to groups or categories of contracts: where it is in the
national interest; where it is found impracticable to act upon each request individually;
and where such waiver will substantially contribute to convenience in administration of
the Act. When a waiver has been granted for any class of contracts, the Director may
withdraw the waiver for a specific contract or group of contracts to be awarded, when in
his or her judgment such action is necessary or appropriate to achieve the purposes of the
Act. The withdrawal shall not apply to contracts awarded prior to the withdrawal, except
that in procurements entered into by formal advertising, or the various forms of restricted
formal advertising, such withdrawal shall not apply unless the withdrawal is made more
than 10 calendar days before the date set for the opening of the bids.
(2) National security. Any requirement set forth in the regulations of this part shall not
apply to any contract whenever the head of the contracting agency determines that such
contract is essential to the national security and that its award without complying with
such requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the Director in writing
within 30 days.
(3) Facilities not connected with contracts. The Director may waive the requirements
of the equal opportunity clause with respect to any of a contractor’s facilities which he or
she finds to be in all respects separate and distinct from activities of the contractor related
to the performance of the contract, provided that he or she also finds that such a waiver
will not interfere with or impede the effectuation of the Act. Such waivers shall be
considered only upon the request of the contractor.
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§ 60-300.5 Equal opportunity clause.
(a) Government contracts. Each contracting agency and each contractor shall include the
following equal opportunity clause in each of its covered Government contracts or
subcontracts (and modifications, renewals, or extensions thereof if not included in the
original contract):
EQUAL OPPORTUNITY FOR VEVRAA PROTECTED VETERANS3
1. The contractor will not discriminate against any employee or applicant for employment
because he or she is a disabled veteran, recently separated veteran, active duty wartime or
campaign badge veteran, or Armed Forces service medal veteran (hereinafter collectively referred
to as “protected veteran(s)”) in regard to any position for which the employee or applicant for
employment is qualified. The contractor agrees to take affirmative action to employ, advance in
employment and otherwise treat qualified individuals without discrimination based on their status
as a protected veteran in all employment practices, including the following:
i. Recruitment, advertising, and job application procedures.
ii. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right
of return from layoff and rehiring.
iii. Rates of pay or any other form of compensation and changes in compensation.
iv. Job assignments, job classifications, organizational structures, position descriptions, lines of
progression, and seniority lists.
v. Leaves of absence, sick leave, or any other leave.
vi. Fringe benefits available by virtue of employment, whether or not administered by the
contractor.
3 The definitions set forth in 41 CFR 60-300.2 apply to the terms used throughout this Clause, and they are
incorporated herein by reference.
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vii. Selection and financial support for training, including apprenticeship, and on-the-job
training under 38 U.S.C. 3687, professional meetings, conferences, and other related activities,
and selection for leaves of absence to pursue training.
viii. Activities sponsored by the contractor including social or recreational programs.
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to immediately list all employment openings which exist at the time of
the execution of this contract and those which occur during the performance of this contract,
including those not generated by this contract and including those occurring at an establishment
of the contractor other than the one where the contract is being performed, but excluding those of
independently operated corporate affiliates, with the appropriate employment service delivery
system where the opening occurs. Listing employment openings with the state workforce agency
job bank or with the local employment service delivery system where the opening occurs will
satisfy the requirement to list jobs with the appropriate employment service delivery system. In
order to satisfy the listing requirement described herein, contractors must provide information
about the job vacancy in any manner and format permitted by the appropriate employment service
delivery system which will allow that system to provide priority referral of veterans protected by
VEVRAA for that job vacancy. Providing information on employment openings to a privately
run job service or exchange will satisfy the contractor’s listing obligation if the privately run job
service or exchange provides the information to the appropriate employment service delivery
system in any manner and format that the employment service delivery system permits which will
allow that system to provide priority referral of protected veterans.
3. Listing of employment openings with the appropriate employment service delivery system
pursuant to this clause shall be made at least concurrently with the use of any other recruitment
source or effort and shall involve the normal obligations which attach to the placing of a bona
fide job order, including the acceptance of referrals of veterans and nonveterans. The listing of
employment openings does not require the hiring of any particular job applicants or from any
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particular group of job applicants, and nothing herein is intended to relieve the contractor from
any requirements in Executive orders or regulations regarding nondiscrimination in employment.
4. Whenever a contractor, other than a state or local governmental contractor, becomes
contractually bound to the listing provisions in paragraphs 2 and 3 of this clause, it shall advise
the employment service delivery system in each state where it has establishments that: (a) it is a
Federal contractor, so that the employment service delivery systems are able to identify them as
such; and (b) it desires priority referrals from the state of protected veterans for job openings at
all locations within the state. The contractor shall also provide to the employment service
delivery system the name and location of each hiring location within the state and the contact
information for the contractor official responsible for hiring at each location. The “contractor
official” may be a chief hiring official, a Human Resources contact, a senior management contact,
or any other manager for the contractor that can verify the information set forth in the job listing
and receive priority referrals from employment service delivery systems. In the event that the
contractor uses any external job search organizations to assist in its hiring, the contractor shall
also provide to the employment service delivery system the contact information for the job search
organization(s). The disclosures required by this paragraph shall be made simultaneously with
the contractor’s first job listing at each employment service delivery system location after the
effective date of this final rule. Should any of the information in the disclosures change since it
was last reported to the employment service delivery system location, the contractor shall provide
updated information simultaneously with its next job listing. As long as the contractor is
contractually bound to these provisions and has so advised the employment service delivery
system, there is no need to advise the employment service delivery system of subsequent
contracts. The contractor may advise the employment service delivery system when it is no
longer bound by this contract clause.
5. The provisions of paragraphs 2 and 3 of this clause do not apply to the listing of employment
openings which occur and are filled outside of the 50 states, the District of Columbia, the
21
Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, the Commonwealth
of the Northern Mariana Islands, Wake Island, and the Trust Territories of the Pacific Islands.
6. As used in this clause: i. All employment openings includes all positions except executive
and senior management, those positions that will be filled from within the contractor’s
organization, and positions lasting three days or less. This term includes full-time employment,
temporary employment of more than three days’ duration, and part-time employment.
ii. Executive and senior management means: (1) Any employee (a) compensated on a salary
basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa
by employers other than the Federal Government), exclusive of board, lodging or other facilities;
(b) whose primary duty is management of the enterprise in which the employee is employed or of
a customarily recognized department or subdivision thereof; (c) who customarily and regularly
directs the work of two or more other employees; and (d) who has the authority to hire or fire
other employees or whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are given particular
weight; or (2) any employee who owns at least a bona fide 20-percent equity interest in the
enterprise in which the employee is employed, regardless of whether the business is a corporate
or other type of organization, and who is actively engaged in its management.
iii. Positions that will be filled from within the contractor’s organization means employment
openings for which no consideration will be given to persons outside the contractor’s
organization (including any affiliates, subsidiaries, and parent companies) and includes any
openings which the contractor proposes to fill from regularly established “recall” lists. The
exception does not apply to a particular opening once an employer decides to consider applicants
outside of his or her own organization.
7. The contractor agrees to comply with the rules, regulations, and relevant orders of the
Secretary of Labor issued pursuant to the Act.
22
8. In the event of the contractor’s noncompliance with the requirements of this clause, actions
for noncompliance may be taken in accordance with the rules, regulations, and relevant orders of
the Secretary of Labor issued pursuant to the Act.
9. The contractor agrees to post in conspicuous places, available to employees and applicants
for employment, notices in a form to be prescribed by the Director, Office of Federal Contract
Compliance Programs, provided by or through the contracting officer. Such notices shall state
the rights of applicants and employees as well as the contractor’s obligation under the law to take
affirmative action to employ and advance in employment qualified employees and applicants who
are protected veterans. The contractor must ensure that applicants or employees who are disabled
veterans are provided the notice in a form that is accessible and understandable to the disabled
veteran (e.g., providing Braille or large print versions of the notice, posting the notice for visual
accessibility to persons in wheelchairs, providing the notice electronically or on computer disc, or
other versions). With respect to employees who do not work at a physical location of the
contractor, a contractor will satisfy its posting obligations by posting such notices in an electronic
format, provided that the contractor provides computers that can access the electronic posting to
such employees, or the contractor has actual knowledge that such employees otherwise are able to
access the electronically posted notices. Electronic notices for employees must be posted in a
conspicuous location and format on the company’s intranet or sent by electronic mail to
employees. An electronic posting must be used by the contractor to notify job applicants of their
rights if the contractor utilizes an electronic application process. Such electronic applicant notice
must be conspicuously stored with, or as part of, the electronic application.
10. The contractor will notify each labor organization or representative of workers with which
it has a collective bargaining agreement or other contract understanding that the contractor is
bound by the terms of VEVRAA, and is committed to take affirmative action to employ and
advance in employment, and shall not discriminate against, protected veterans.
23
11. The contractor will include the provisions of this clause in every subcontract or purchase
order of $100,000 or more, unless exempted by the rules, regulations, or orders of the Secretary
issued pursuant to VEVRAA so that such provisions will be binding upon each subcontractor or
vendor. The contractor will take such action with respect to any subcontract or purchase order as
the Director, Office of Federal Contract Compliance Programs, may direct to enforce such
provisions, including action for noncompliance.
12. The contractor must, in all solicitations or advertisements for employees placed by or on
behalf of the contractor, state that all qualified applicants will receive consideration for
employment without regard to their protected veteran status.
[End of Clause]
(b) Subcontracts. Each contractor shall include the equal opportunity clause in each of
its subcontracts subject to this part.
(c) Adaptation of language. Such necessary changes in language may be made to the
equal opportunity clause as must be appropriate to identify properly the parties and their
undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It is not necessary to
include the equal opportunity clause verbatim in the contract. The clause shall be made a
part of the contract by citation to 41 CFR 60-300.5(a) and inclusion of the following
language, in bold text, after the citation: “This contractor and subcontractor shall
abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits
discrimination against qualified protected veterans, and requires affirmative action
by covered prime contractors and subcontractors to employ and advance in
employment qualified protected veterans.”
24
(e) Incorporation by operation of the Act. By operation of the Act, the equal
opportunity clause shall be considered to be a part of every contract and subcontract
required by the Act and the regulations in this part to include such a clause, whether or
not it is physically incorporated in such contract and whether or not there is a written
contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall cooperate with the
Director and the Secretary in the performance of their responsibilities under the Act.
Such cooperation shall include insuring that the equal opportunity clause is included in
all covered Government contracts and that contractors are fully informed of their
obligations under the Act and this part, providing the Director with any information
which comes to the agency’s attention that a contractor is not in compliance with the Act
or this part, responding to requests for information from the Director, and taking such
actions for noncompliance as are set forth in § 60-300.66 as may be ordered by the
Secretary or the Director.
Subpart B -- Discrimination Prohibited
§ 60-300.20 Covered employment activities.
The prohibition against discrimination in this part applies to the following employment
activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff,
termination, right of return from layoff, and rehiring;
25
(c) Rates of pay or any other form of compensation and changes in compensation;
(d) Job assignments, job classifications, organizational structures, position
descriptions, lines of progression, and seniority lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or not administered by
the contractor;
(g) Selection and financial support for training, including, apprenticeships, professional
meetings, conferences and other related activities, and selection for leaves of absence to
pursue training;
(h) Activities sponsored by the contractor including social and recreational programs;
and
(i) Any other term, condition, or privilege of employment.
§ 60-300.21 Prohibitions.
The term discrimination includes, but is not limited to, the acts described in this section
and § 60-300.23.
(a) Disparate treatment. It is unlawful for the contractor to deny an employment
opportunity or benefit or otherwise to discriminate against a qualified individual because
of that individual’s status as a protected veteran or pre-JVA veteran.
(b) Limiting, segregating and classifying. Unless otherwise permitted by this part, it is
unlawful for the contractor to limit, segregate, or classify a job applicant or employee in a
way that adversely affects his or her employment opportunities or status on the basis of
that individual’s status as a protected veteran or pre-JVA veteran. For example, the
26
contractor may not segregate protected veterans as a whole, or any classification of
protected veterans or pre-JVA veterans, into separate work areas or into separate lines of
advancement.
(c) Contractual or other arrangements—(1) In general. It is unlawful for the contractor
to participate in a contractual or other arrangement or relationship that has the effect of
subjecting the contractor’s own qualified applicant or employee who is a protected
veteran or pre-JVA veteran to the discrimination prohibited by this part.
(2) Contractual or other arrangement defined. The phrase “contractual or other
arrangement or relationship” includes, but is not limited to, a relationship with: an
employment or referral agency; a labor organization, including a collective bargaining
agreement; an organization providing fringe benefits to an employee of the contractor; or
an organization providing training and apprenticeship programs.
(3) Application. This paragraph (c) applies to the contractor, with respect to its own
applicants or employees, whether the contractor offered the contract or initiated the
relationship, or whether the contractor accepted the contract or acceded to the
relationship. The contractor is not liable for the actions of the other party or parties to the
contract which only affect that other party’s employees or applicants.
(d) Standards, criteria or methods of administration. It is unlawful for the contractor to
use standards, criteria, or methods of administration, that are not job-related and
consistent with business necessity, and that:
(1) Have the effect of discriminating on the basis of status as a protected veteran or
pre-JVA veteran; or
27
(2) Perpetuate the discrimination of others who are subject to common administrative
control.
(e) Relationship or association with a protected veteran. It is unlawful for the
contractor to exclude or deny equal jobs or benefits to, or otherwise discriminate against,
a qualified individual because of the known protected veteran or pre-JVA veteran status
of an individual with whom the qualified individual is known to have a family, business,
social or other relationship or association.
(f) Not making reasonable accommodation. (1) It is unlawful for the contractor to fail
to make reasonable accommodation to the known physical or mental limitations of an
applicant or employee who is a qualified disabled veteran or pre-JVA special disabled
veteran, unless such contractor can demonstrate that the accommodation would impose
an undue hardship on the operation of its business.
(2) It is unlawful for the contractor to deny employment opportunities to an applicant
or employee who is a qualified disabled veteran or pre-JVA special disabled veteran
based on the need of such contractor to make reasonable accommodation to such an
individual’s physical or mental impairments.
(3) A qualified disabled veteran or pre-JVA special disabled veteran is not required to
accept an accommodation, aid, service, opportunity or benefit which such qualified
individual chooses not to accept. However, if such individual rejects a reasonable
accommodation, aid, service, opportunity or benefit that is necessary to enable the
individual to perform the essential functions of the position held or desired, and cannot,
as a result of that rejection, perform the essential functions of the position, the individual
will not be considered a qualified disabled veteran or pre-JVA special disabled veteran.
28
(g) Qualification standards, tests and other selection criteria--(1) In general. It is
unlawful for the contractor to use qualification standards, employment tests or other
selection criteria that screen out or tend to screen out individuals on the basis of their
status as protected veterans or pre-JVA veterans unless the standard, test or other
selection criterion, as used by the contractor, is shown to be job-related for the position in
question and is consistent with business necessity. Selection criteria that concern an
essential function may not be used to exclude a disabled veteran if that individual could
satisfy the criteria with provision of a reasonable accommodation. Selection criteria that
exclude or tend to exclude individuals on the basis of their status as protected veterans or
pre-JVA veterans but concern only marginal functions of the job would not be consistent
with business necessity. The contractor may not refuse to hire an applicant who is a
disabled veteran or pre-JVA special disabled veteran because the applicant’s disability
prevents him or her from performing marginal functions. When considering a protected
veteran or pre-JVA veteran for an employment opportunity, the contractor may not rely
on portions of such veteran’s military record, including his or her discharge papers,
which are not relevant to the qualification requirements of the opportunity in issue.
(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3, do
not apply to 38 U.S.C. 4212 and are similarly inapplicable to this part.
(h) Administration of tests. It is unlawful for the contractor to fail to select and
administer tests concerning employment in the most effective manner to ensure that,
when a test is administered to a job applicant or employee who is a disabled veteran or
pre-JVA special disabled veteran with a disability that impairs sensory, manual, or
29
speaking skills, the test results accurately reflect the skills, aptitude, or whatever other
factor of the applicant or employee that the test purports to measure, rather than reflecting
the impaired sensory, manual, or speaking skills of such employee or applicant, except
where such skills are the factors that the test purports to measure.
(i) Compensation. In offering employment or promotions to protected veterans or pre-
JVA veterans, it is unlawful for the contractor to reduce the amount of compensation
offered because of any income based upon a disability-related and/or military-service-
related pension or other disability-related and/or military-service-related benefit the
applicant or employee receives from another source.
§ 60-300.22 Direct threat defense.
The contractor may use as a qualification standard the requirement that an individual be
able to perform the essential functions of the position held or desired without posing a
direct threat to the health or safety of the individual or others in the workplace. (See §
60-300.2(g) defining direct threat.).
§ 60-300.23 Medical examinations and inquiries.
(a) Prohibited medical examinations or inquiries. Except as stated in paragraphs (b)
and (c) of this section, it is unlawful for the contractor to require a medical examination
of an applicant or employee or to make inquiries as to whether an applicant or employee
is a disabled veteran or as to the nature or severity of such a veteran’s disability.
(b) Permitted medical examinations and inquiries--(1) Acceptable pre-employment
inquiry. The contractor may make pre-employment inquiries into the ability of an
applicant to perform job-related functions, and/or may ask an applicant to describe or to
30
demonstrate how, with or without reasonable accommodation, the applicant will be able
to perform job-related functions.
(2) Employment entrance examination. The contractor may require a medical
examination (and/or inquiry) after making an offer of employment to a job applicant and
before the applicant begins his or her employment duties, and may condition an offer of
employment on the results of such examination (and/or inquiry), if all entering employees
in the same job category are subjected to such an examination (and/or inquiry) regardless
of their status as a disabled veteran.
(3) Examination of employees. The contractor may require a medical examination
(and/or inquiry) of an employee that is job-related and consistent with business necessity.
The contractor may make inquiries into the ability of an employee to perform job-related
functions.
(4) Other acceptable examinations and inquiries. The contractor may conduct
voluntary medical examinations and activities, including voluntary medical histories,
which are part of an employee health program available to employees at the work site.
(5) Medical examinations conducted in accordance with paragraphs (b)(2) and (b)(4)
of this section do not have to be job-related and consistent with business necessity.
However, if certain criteria are used to screen out an applicant or applicants or an
employee or employees who are disabled veterans as a result of such examinations or
inquiries, the contractor must demonstrate that the exclusionary criteria are job-related
and consistent with business necessity, and that performance of the essential job
functions cannot be accomplished with reasonable accommodations as required in this
part.
31
(c) Invitation to self-identify. The contractor shall invite applicants to self-identify as
being covered by the Act, as specified in § 60-300.42.
(d) Confidentiality and use of medical information. (1) Information obtained under
this section regarding the medical condition or history of any applicant or employee shall
be collected and maintained on separate forms and in separate medical files and treated as
a confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary restrictions on the
work or duties of the applicant or employee and necessary accommodations;
(ii) First aid and safety personnel may be informed, when appropriate, if the disability
might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws administered by OFCCP,
including this part, or enforcing the Americans with Disabilities Act, shall be provided
relevant information on request.
(2) Information obtained under this section regarding the medical condition or history
of any applicant or employee shall not be used for any purpose inconsistent with this part.
§ 60-300.24 Drugs and alcohol.
(a) Specific activities permitted. The contractor: (1) May prohibit the illegal use of
drugs and the use of alcohol at the workplace by all employees;
(2) May require that employees not be under the influence of alcohol or be engaging in
the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the requirements
established under the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq.);
32
(4) May hold an employee who engages in the illegal use of drugs or who is an
alcoholic to the same qualification standards for employment or job performance and
behavior to which the contractor holds its other employees, even if any unsatisfactory
performance or behavior is related to the employee’s drug use or alcoholism;
(5) May require that its employees employed in an industry subject to such regulations
comply with the standards established in the regulations (if any) of the Departments of
Defense and Transportation, and of the Nuclear Regulatory Commission, and other
Federal agencies regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions comply with the
regulations (if any) of the Departments of Defense and Transportation, and of the Nuclear
Regulatory Commission, and other Federal agencies that apply to employment in
sensitive positions subject to such regulations.
(b) Drug testing—(1) General policy. For purposes of this part, a test to determine the
illegal use of drugs is not considered a medical examination. Thus, the administration of
such drug tests by the contractor to its job applicants or employees is not a violation of §
60-300.23. Nothing in this part shall be construed to encourage, prohibit, or authorize the
contractor to conduct drug tests of job applicants or employees to determine the illegal
use of drugs or to make employment decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be construed to encourage,
prohibit, or authorize the otherwise lawful exercise by contractors subject to the
jurisdiction of the Department of Transportation of authority to test employees in, and
applicants for, positions involving safety-sensitive duties for the illegal use of drugs or
for on-duty impairment by alcohol; and remove from safety-sensitive positions persons
33
who test positive for illegal use of drugs or on-duty impairment by alcohol pursuant to
paragraph (b)(1) of this section.
(3) Any information regarding the medical condition or history of any employee or
applicant obtained from a test to determine the illegal use of drugs, except information
regarding the illegal use of drugs, is subject to the requirements of §§ 60-300.23(b)(5)
and 60-300.23(d)(2).
§ 60-300.25 Health insurance, life insurance and other benefit plans.
(a) An insurer, hospital, or medical service company, health maintenance organization,
or any agent or entity that administers benefit plans, or similar organizations may
underwrite risks, classify risks, or administer such risks that are based on or not
inconsistent with state law.
(b) The contractor may establish, sponsor, observe or administer the terms of a bona
fide benefit plan that are based on underwriting risks, classifying risks, or administering
such risks that are based on or not inconsistent with state law.
(c) The contractor may establish, sponsor, observe, or administer the terms of a bona
fide benefit plan that is not subject to state laws that regulate insurance.
(d) The contractor shall not deny a qualified disabled veteran equal access to insurance
or subject a qualified disabled veteran to different terms or conditions of insurance based
on disability alone, if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b) and (c) of this section are permitted
unless these activities are used as a subterfuge to evade the purposes of this part.
34
Subpart C – Affirmative Action Program
§ 60-300.40 Applicability of the affirmative action program requirement.
(a) The requirements of this subpart apply to every Government contractor that has 50
or more employees and a contract of $100,000 or more.
(b) Contractors described in paragraph (a) of this section shall, within 120 days of the
commencement of a contract, prepare and maintain an affirmative action program at each
establishment. The affirmative action program shall set forth the contractor’s policies
and procedures in accordance with this part. This program may be integrated into or kept
separate from other affirmative action programs.
(c) The affirmative action program shall be reviewed and updated annually by the
official designated by the contractor pursuant to § 60-300.44(i).
(d) The contractor shall submit the affirmative action program within 30 days of a
request from OFCCP, unless the request provides for a different time. The contractor
also shall make the affirmative action program promptly available on-site upon OFCCP's
request.
§ 60-300.41 Availability of affirmative action program.
The full affirmative action program, absent the data metrics required by § 60-
300.44(k), shall be made available to any employee or applicant for employment for
inspection upon request. The location and hours during which the program may be
obtained shall be posted at each establishment.
35
§ 60-300.42 Invitation to self-identify.
(a) Pre-offer. The contractor shall invite applicants to inform the contractor whether
the applicant believes that he or she is a protected veteran who may be covered by the
Act. This invitation may be included in the application materials for the position, but in
any circumstance shall be provided to applicants prior to making an offer of employment
to a job applicant.
(b) Post-offer. In addition to the invitation in paragraph (a) of this section, the
contractor shall invite applicants to inform the contractor whether the applicant believes
that he or she belongs to one or more of the specific categories of protected veteran for
which the contractor is required to report pursuant to 41 CFR part 61-300. Such an
invitation shall be made at any time after the offer of employment but before the
applicant begins his or her job duties.
(c) The invitations referenced in paragraphs (a) and (b) of this section shall state that
the contractor is a Federal contractor required to take affirmative action to employ and
advance in employment protected veterans pursuant to the Act. The invitations also shall
summarize the relevant portions of the Act and the contractor’s affirmative action
program. Furthermore, the invitations shall state that the information is being requested
on a voluntary basis, that it will be kept confidential, that refusal to provide it will not
subject the applicant to any adverse treatment, and that it will not be used in a manner
inconsistent with the act. (An acceptable form for such an invitation is set forth in
Appendix B of this part.)
(d) If an applicant identifies himself or herself as a disabled veteran in the post-offer
self-identification detailed in paragraph (b) of this section, the contractor should inquire
36
of the applicant whether an accommodation is necessary, and if so, should engage with
the applicant regarding reasonable accommodation. The contractor may make such
inquiries to the extent they are consistent with the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. 12101, et seq. The contractor shall maintain a separate file in
accordance with § 60-300.23(d) on persons who have self-identified as disabled veterans.
(e) The contractor shall keep all information on self-identification confidential. The
contractor shall provide the information to OFCCP upon request. This information may
be used only in accordance with this part.
(f) Nothing in this section relieves the contractor of its obligation to take affirmative
action with respect to those applicants or employees who are known to the contractor to
be protected veterans.
(g) Nothing in this section relieves the contractor from liability for discrimination
under the Act.
§ 60-300.43 Affirmative action policy.
Under the affirmative action obligations imposed by the Act, contractors shall not
discriminate against protected veterans, and shall take affirmative action to employ and
advance in employment qualified protected veterans at all levels of employment,
including the executive level. Such action shall apply to all employment activities set
forth in § 60-300.20.
§ 60-300.44 - Required contents of affirmative action programs.
Acceptable affirmative action programs shall contain, but not necessarily be limited to,
the following elements:
37
(a) Policy statement. The contractor shall include an equal opportunity policy
statement in its affirmative action program, and shall post the policy statement on
company bulletin boards. The contractor must ensure that applicants and employees who
are disabled veterans are provided the notice in a form that is accessible and
understandable to the disabled veteran (e.g., providing Braille or large print versions of
the notice, or posting the notice for visual accessibility to persons in wheelchairs). The
policy statement shall indicate the top United States executive’s (such as the Chief
Executive Officer or the President of the United States Division of a foreign company)
support for the contractor’s affirmative action program, provide for an audit and reporting
system (see paragraph (h) of this section) and assign overall responsibility for the
implementation of affirmative action activities required under this part (see paragraph (i)
of this section). Additionally, the policy shall state, among other things, that the
contractor will: recruit, hire, train and promote persons in all job titles, and ensure that all
other personnel actions are administered, without regard to protected veteran status; and
ensure that all employment decisions are based only on valid job requirements. The
policy shall state that employees and applicants shall not be subjected to harassment,
intimidation, threats, coercion or discrimination because they have engaged in or may
engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance evaluation, hearing, or
any other activity related to the administration of the affirmative action provisions of
VEVRAA or any other Federal, state or local law requiring equal opportunity for
protected veterans;
38
(3) Opposing any act or practice made unlawful by VEVRAA or its implementing
regulations in this part or any other Federal, state or local law requiring equal opportunity
for protected veterans; or
(4) Exercising any other right protected by VEVRAA or its implementing regulations
in this part.
(b) Review of personnel processes. The contractor shall ensure that its personnel
processes provide for careful, thorough, and systematic consideration of the job
qualifications of applicants and employees who are known protected veterans for job
vacancies filled either by hiring or promotion, and for all training opportunities offered or
available. The contractor shall ensure that when a protected veteran is considered for
employment opportunities, the contractor relies only on that portion of the individual’s
military record, including his or her discharge papers, relevant to the requirements of the
opportunity in issue. The contractor shall ensure that its personnel processes do not
stereotype protected veterans in a manner which limits their access to all jobs for which
they are qualified. The contractor shall periodically review such processes and make any
necessary modifications to ensure that these obligations are carried out. A description of
the review and any necessary modifications to personnel processes or development of
new processes shall be included in any affirmative action programs required under this
part. The contractor must design procedures that facilitate a review of the
implementation of this requirement by the contractor and the Government (Appendix C
of this part is an example of an appropriate set of procedures. The procedures in
Appendix C are not required and contractors may develop other procedures appropriate to
their circumstances.)
39
(c) Physical and mental qualifications. (1) The contractor shall provide in its
affirmative action program, and shall adhere to, a schedule for the periodic review of all
physical and mental job qualification standards to ensure that, to the extent qualification
standards tend to screen out qualified disabled veterans, they are job-related for the
position in question and are consistent with business necessity. (2) Whenever the
contractor applies physical or mental qualification standards in the selection of applicants
or employees for employment or other change in employment status such as promotion,
demotion or training, to the extent that qualification standards tend to screen out qualified
disabled veterans, the standards shall be related to the specific job or jobs for which the
individual is being considered and consistent with business necessity. The contractor has
the burden to demonstrate that it has complied with the requirements of this paragraph
(c)(2).
(3) The contractor may use as a defense to an allegation of a violation of paragraph
(c)(2) of this section that an individual poses a direct threat to the health or safety of the
individual or others in the workplace. (See § 60-300.2(g) defining direct threat.) Once
the contractor believes that a direct threat exists, the contractor shall create a statement of
reasons supporting its belief, addressing each of the criteria for “direct threat” listed in §
60-300.2(g). This statement shall be treated as a confidential medical record in
accordance with § 60-300.23, and shall be retained as an employment record subject to
the recordkeeping requirements of § 60-300.80.
(d) Reasonable accommodation to physical and mental limitations. As is provided in §
60-300.21(f), as a matter of nondiscrimination the contractor must make reasonable
accommodation to the known physical or mental limitations of an otherwise qualified
40
disabled veteran unless it can demonstrate that the accommodation would impose an
undue hardship on the operation of its business. As a matter of affirmative action, if an
employee who is known to be a disabled veteran is having significant difficulty
performing his or her job and it is reasonable to conclude that the performance problem
may be related to the known disability, the contractor shall confidentially notify the
employee of the performance problem and inquire whether the problem is related to the
employee’s disability; if the employee responds affirmatively, the contractor shall
confidentially inquire whether the employee is in need of a reasonable accommodation.
(e) Harassment. The contractor must develop and implement procedures to ensure that
its employees are not harassed because of their status as a protected veteran.
(f) External dissemination of policy, outreach and positive recruitment.
(1) Required outreach efforts.
(i) The contractor shall undertake appropriate outreach and positive recruitment
activities such as those listed in paragraph (f)(2) of this section that are reasonably
designed to effectively recruit protected veterans. It is not contemplated that the
contractor will necessarily undertake all the activities listed in paragraph (f)(2) of this
section or that its activities will be limited to those listed. The scope of the contractor’s
efforts shall depend upon all the circumstances, including the contractor’s size and
resources and the extent to which existing employment practices are adequate.
(ii) The contractor must send written notification of company policy related to its
affirmative action efforts to all subcontractors, including subcontracting vendors and
suppliers, requesting appropriate action on their part.
41
(2) Examples of outreach and recruitment activities . Below are examples of outreach
and positive recruitment activities referred to in paragraph (f)(1) of this section. This is
an illustrative list, and contractors may choose from these or other activities, as
appropriate to their circumstances.
(i) Enlisting the assistance and support of the following persons and organizations in
recruiting, and developing on-the-job training opportunities for veterans, in order to
fulfill its commitment to provide meaningful employment opportunities for such
veterans:
(A) The Local Veterans’ Employment Representative in the local employment service
office (i.e., the One-Stop) nearest the contractor’s establishment;
(B) The Department of Veterans Affairs Regional Office nearest the contractor’s
establishment;
(C) The veterans’ counselors and coordinators (“Vet-Reps”) on college campuses;
(D) The service officers of the national veterans’ groups active in the area of the
contractor’s establishment;
(E) Local veterans’ groups and veterans’ service centers near the contractor’s
establishment;
(F) The Department of Defense Transition Assistance Program (TAP), or any
subsequent program that, in whole or in part, might replace TAP; and
(G) Any organization listed in the Employer Resources section of the National
Resource Directory (http://www.nationalresourcedirectory.gov/), or any future service
that replaces or complements it.
42
(ii) The contractor should also consider taking the actions listed below, as appropriate,
to fulfill its commitment to provide meaningful employment opportunities to protected
veterans:
(A) Formal briefing sessions should be held, preferably on company premises, with
representatives from recruiting sources. Contractor facility tours, clear and concise
explanations of current and future job openings, position descriptions, worker
specifications, explanations of the company’s selection process, and recruiting literature
should be an integral part of the briefing. At any such briefing sessions, the company
official in charge of the contractor’s affirmative action program should be in attendance
when possible. Formal arrangements should be made for referral of applicants, follow up
with sources, and feedback on disposition of applicants.
(B) The contractor’s recruitment efforts at all educational institutions should
incorporate special efforts to reach students who are protected veterans.
(C) An effort should be made to participate in work-study programs with Department
of Veterans Affairs rehabilitation facilities which specialize in training or educating
disabled veterans.
(D) Protected veterans should be made available for participation in career days, youth
motivation programs, and related activities in their communities.
(E) The contractor should take any other positive steps it deems necessary to attract
qualified protected veterans not currently in the work force who have requisite skills and
can be recruited through affirmative action measures. These persons may be located
through the local chapters of organizations of and for any of the classifications of
protected veterans.
43
(F) The contractor, in making hiring decisions, should consider applicants who are
known protected veterans for all available positions for which they may be qualified
when the position(s) applied for is unavailable.
(G) The contractor should consider listing its job openings with the National Resource
Directory’s Veterans Job Bank, or any future service that replaces or complements it.
(3) Assessment of external outreach and recruitment efforts. The contractor shall, on
an annual basis, review the outreach and recruitment efforts it has taken over the previous
twelve months to evaluate their effectiveness in identifying and recruiting qualified
protected veterans. The contractor shall document each evaluation, including at a
minimum the criteria it used to evaluate the effectiveness of each effort and the
contractor’s conclusion as to whether each effort was effective. Among these criteria
shall be the data collected pursuant to paragraph (k) of this section for the current year
and the two most recent previous years. The contractor’s conclusion as to the
effectiveness of its outreach efforts must be reasonable as determined by OFCCP in light
of these regulations. If the contractor concludes the totality of its efforts were not
effective in identifying and recruiting qualified protected veterans, it shall identify and
implement alternative efforts listed in paragraphs (f)(1) or (f)(2) of this section in order to
fulfill its obligations.
(4) Recordkeeping obligation. The contractor shall document all activities it
undertakes to comply with the obligations of this section, and retain these documents for
a period of three (3) years.
(g) Internal dissemination of policy. (1) A strong outreach program will be ineffective
without adequate internal support from supervisory and management personnel and other
44
employees. In order to assure greater employee cooperation and participation in the
contractor’s efforts, the contractor shall develop the internal procedures listed in
paragraph (g)(2) of this section for communication of its obligation to engage in
affirmative action efforts to employ and advance in employment qualified protected
veterans. It is not contemplated that the contractor’s activities will be limited to those
listed. These procedures shall be designed to foster understanding, acceptance and
support among the contractor’s executive, management, supervisory and other employees
and to encourage such persons to take the necessary actions to aid the contractor in
meeting this obligation.
(2) The contractor shall implement and disseminate this policy internally as follows:
(i) Include it in the contractor’s policy manual or otherwise make the policy available
to employees;
(ii) If the contractor is party to a collective bargaining agreement, it shall notify union
officials and/or employee representatives to inform them of the contractor’s policy, and
request their cooperation;
(3) The contractor is encouraged to additionally implement and disseminate this policy
internally as follows:
(i) Inform all employees and prospective employees of its commitment to engage in
affirmative action to increase employment opportunities for protected veterans;
(ii) Publicize it in the company newspaper, magazine, annual report and other media;
(iii) Conduct special meetings with executive, management, and supervisory personnel
to explain the intent of the policy and individual responsibility for effective
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implementation, making clear the chief executive officer’s support for the affirmative
action policy;
(iv) Discuss the policy thoroughly in both employee orientation and management
training programs;
(v) When employees are featured in employee handbooks or similar publications for
employees, include disabled veterans.
(h) Audit and reporting system. (1) The contractor shall design and implement an audit
and reporting system that will:
(i) Measure the effectiveness of the contractor’s affirmative action program;
(ii) Indicate any need for remedial action;
(iii) Determine the degree to which the contractor’s objectives have been attained;
(iv) Determine whether known protected veterans have had the opportunity to
participate in all company sponsored educational, training, recreational and social
activities;
(v) Measure the contractor’s compliance with the affirmative action program’s specific
obligations; and
(vi) Document the actions taken to comply with the obligations of paragraphs (i)
through (v) above, and retain these documents as employment records subject to the
recordkeeping requirements of § 60-300.80.
(2) Where the affirmative action program is found to be deficient, the contractor shall
undertake necessary action to bring the program into compliance.
(i) Responsibility for implementation. An official of the contractor shall be assigned
responsibility for implementation of the contractor’s affirmative action activities under
46
this part. His or her identity should appear on all internal and external communications
regarding the company’s affirmative action program. This official shall be given
necessary senior management support and staff to manage the implementation of this
program.
(j) Training. All personnel involved in the recruitment, screening, selection,
promotion, disciplinary, and related processes shall be trained to ensure that the
commitments in the contractor’s affirmative action program are implemented.
(k) Data collection analysis. The contractor shall document the following
computations or comparisons pertaining to applicants and hires on an annual basis and
maintain them for a period of three (3) years: (1) The number of applicants who self-
identified as protected veterans pursuant to § 60-300.42(a), or who are otherwise known
as protected veterans;
(2) The total number of job openings and total number of jobs filled;
(3) The total number of applicants for all jobs;
(4) The number of protected veteran applicants hired; and
(5) The total number of applicants hired.
§ 60-300.45 Benchmarks for hiring.
The benchmark is not a rigid and inflexible quota which must be met, nor is it to be
considered either a ceiling or a floor for the employment of particular groups. Quotas are
expressly forbidden.
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(a) Purpose: The purpose of establishing benchmarks is to create a quantifiable method
by which the contractor can measure its progress toward achieving equal employment
opportunity for protected veterans.
(b) Hiring benchmarks shall be set by the contractor on an annual basis. Benchmarks
shall be set using one of the two mechanisms described below:
(1) Establish a benchmark equaling the national percentage of veterans in the civilian
labor force, which will be published and updated annually on the OFCCP website; or
(2) Establish a benchmark by taking into account: (i) the average percentage of
veterans in the civilian labor force in the State(s) where the contractor is located over the
preceding three years, as calculated by the Bureau of Labor Statistics and published on
the OFCCP website; (ii) the number of veterans, over the previous four quarters, who
were participants in the employment service delivery system in the State where the
contractor is located, as tabulated by the Veterans’ Employment and Training Service and
published on the OFCCP website; (iii) the applicant ratio and hiring ratio for the previous
year, based on the data collected pursuant to § 60-300.44(k); (iv) the contractor’s recent
assessments of the effectiveness of its external outreach and recruitment efforts, as set
forth in § 60-300.44(f)(3); and (v) any other factors, including but not limited to the
nature of the contractor’s job openings and/or its location, which would tend to affect the
availability of qualified protected veterans.
(c) The contractor shall document the hiring benchmark it has established each year. If
the contractor sets its benchmark using the procedure in paragraph (b)(2) of this section,
it shall document each of the factors that it considered in establishing the hiring
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benchmark and the relative significance of each of these factors. The contractor shall
retain these records for a period of three (3) years.
Subpart D—General Enforcement and Complaint Procedures
§ 60-300.60 Compliance evaluations.
(a) OFCCP may conduct compliance evaluations to determine if the contractor is taking
affirmative action to employ, advance in employment and otherwise treat qualified
individuals without discrimination based on their status as a protected veteran in all
employment practices. A compliance evaluation may consist of any one or any
combination of the following investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of the hiring and
employment practices of the contractor, the written affirmative action program, and the
results of the affirmative action efforts undertaken by the contractor. A compliance
review may proceed in three stages:
(i) A desk audit of the written affirmative action program and supporting documentation
to determine whether all elements required by the regulations in this part are included,
whether the affirmative action program meets agency standards of reasonableness, and
whether the affirmative action program and supporting documentation satisfy agency
standards of acceptability. OFCCP may extend the temporal scope of the desk audit
beyond that set forth in the scheduling letter if OFCCP deems it necessary to carry out its
investigation of potential violations of this part. The desk audit is conducted at OFCCP
offices;
49
(ii) An on-site review, conducted at the contractor’s establishment to investigate
unresolved problem areas identified in the affirmative action program and supporting
documentation during the desk audit, to verify that the contractor has implemented the
affirmative action program and has complied with those regulatory obligations not
required to be included in the affirmative action program, and to examine potential
instances or issues of discrimination. An on-site review normally will involve an
examination of the contractor’s personnel and employment policies, inspection and
copying of documents related to employment actions, and interviews with employees,
supervisors, managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied by the contractor or
otherwise gathered during or pursuant to the on-site review;
(2) Off-site review of records. An analysis and evaluation of the affirmative action
program (or any part thereof) and supporting documentation, and other documents related
to the contractor’s personnel policies and employment actions that may be relevant to a
determination of whether the contractor has complied with the requirements of VEVRAA
and its regulations;
(3) Compliance check. A determination of whether the contractor has maintained
records consistent with § 60-300.80; OFCCP may request the documents be provided
either on-site or off-site; or
(4) Focused review. A review restricted to one or more components of the contractor’s
organization or one or more aspects of the contractor’s employment practices.
(b) Where deficiencies are found to exist, reasonable efforts shall be made to secure
compliance through conciliation and persuasion pursuant to § 60-300.62.
50
(c) Reporting requirements. During a compliance evaluation, OFCCP may verify
whether the contractor has complied with applicable reporting requirements required
under regulations promulgated by the Veterans’ Employment and Training Service
(VETS). If the contractor has not complied with any such reporting requirement, OFCCP
will notify VETS.
(d) Pre-award compliance evaluations. Each agency will include in the invitation for
bids for each formally advertised nonconstruction contract or state at the outset of
negotiations for each negotiated contract, that if the award, when let, should total $10
million or more, the prospective contractor and its known first-tier subcontractors with
subcontracts of $10 million or more will be subject to a compliance evaluation before the
award of the contract unless OFCCP has conducted an evaluation and found them to be in
compliance with VEVRAA within the preceding 24 months. The awarding agency will
notify OFCCP and request appropriate action and findings in accordance with this
subsection. Within 15 days of the notice OFCCP will inform the awarding agency of its
intention to conduct a pre-award compliance evaluation. If OFCCP does not inform the
awarding agency within that period of its intention to conduct a pre-award compliance
evaluation, clearance shall be presumed and the awarding agency is authorized to proceed
with the award. If OFCCP informs the awarding agency of its intention to conduct a pre-
award compliance evaluation, OFCCP will be allowed an additional 20 days after the
date that it so informs the awarding agency to provide its conclusions. If OFCCP does
not provide the awarding agency with its conclusions within that period, clearance will be
presumed and the awarding agency is authorized to proceed with the award.
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§ 60-300.61 Complaint procedures.
(a) Place and time of filing. Any applicant for employment with a contractor or any
employee of a contractor may, personally, or by an authorized representative, file a
written complaint alleging a violation of the Act or the regulations in this part. The
complaint may allege individual or class-wide violation(s). Such complaint must be filed
within 300 days of the date of the alleged violation, unless the time for filing is extended
by OFCCP for good cause shown. Complaints may be submitted to OFCCP, 200
Constitution Avenue, N.W., Washington, D.C. 20210, or to any OFCCP regional, district,
or area office. Complaints may also be submitted to the Veterans’ Employment and
Training Service of the Department of Labor directly, or through the Local Veterans’
Employment Representative (LVER) at the local employment service office. Such
parties will assist veterans in preparing complaints, promptly refer such complaints to
OFCCP, and maintain a record of all complaints which they receive and forward.
OFCCP shall inform the party forwarding the complaint of the progress and results of its
complaint investigation. The state employment service delivery system shall cooperate
with the Director in the investigation of any complaint.
(b) Contents of complaints.--(1) In general. A complaint must be signed by the
complainant or his or her authorized representative and must contain the following
information:
(i) Name and address (including telephone number) of the complainant;
(ii) Name and address of the contractor who committed the alleged violation;
(iii) Documentation showing that the individual is a protected veteran or pre-JVA
veteran. Such documentation must include a copy of the veteran’s form DD-214, and,
52
where applicable, a copy of the veteran’s Benefits Award Letter, or similar Department
of Veterans Affairs certification, updated within one year prior to the date the complaint
is filed;
(iv) A description of the act or acts considered to be a violation, including the pertinent
dates (in the case of an alleged continuing violation, the earliest and most recent date that
the alleged violation occurred should be stated); and
(v) Other pertinent information available which will assist in the investigation and
resolution of the complaint, including the name of any known Federal agency with which
the employer has contracted.
(2) Third party complaints. A complaint filed by an authorized representative need not
identify by name the person on whose behalf it is filed. The person filing the complaint,
however, shall provide OFCCP with the name, address and telephone number of the
person on whose behalf it is made, and the other information specified in paragraph
(b)(1) of this section. OFCCP shall verify the authorization of such a complaint by the
person on whose behalf the complaint is made. Any such person may request that
OFCCP keep his or her identity confidential, and OFCCP will protect the individual’s
confidentiality wherever that is possible given the facts and circumstances in the
complaint.
(c) Incomplete information. Where a complaint contains incomplete information,
OFCCP shall seek the needed information from the complainant. If the information is
not furnished to OFCCP within 60 days of the date of such request, the case may be
closed.
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(d) Investigations. The Department of Labor shall institute a prompt investigation of
each complaint.
(e) Resolution of matters. (1) If the complaint investigation finds no violation of the
Act or this part, or if the Director decides not to refer the matter to the Solicitor of Labor
for enforcement proceedings against the contractor pursuant to § 60-300.65(a)(1), the
complainant and contractor shall be so notified. The Director, on his or her own
initiative, may reconsider his or her determination or the determination of any of his or
her designated officers who have authority to issue Notifications of Results of
Investigation.
(2) The Director will review all determinations of no violation that involve complaints
that are not also cognizable under Title I of the Americans with Disabilities Act.
(3) In cases where the Director decides to reconsider the determination of a Notification
of Results of Investigation, the Director shall provide prompt notification of his or her
intent to reconsider, which is effective upon issuance, and his or her final determination
after reconsideration, to the person claiming to be aggrieved, the person making the
complaint on behalf of such person, if any, and the contractor.
(4) If the investigation finds a violation of the Act or this part, OFCCP shall invite the
contractor to participate in conciliation discussions pursuant to § 60-300.62.
§ 60-300.62 Conciliation agreements.
If a compliance evaluation, complaint investigation or other review by OFCCP finds a
material violation of the Act or this part, and if the contractor is willing to correct the
violations and/or deficiencies, and if OFCCP determines that settlement on that basis
54
(rather than referral for consideration of formal enforcement) is appropriate, a written
conciliation agreement shall be required. The agreement shall provide for such remedial
action as may be necessary to correct the violations and/or deficiencies noted, including,
where appropriate (but not necessarily limited to) such make whole remedies as back pay
and retroactive seniority. The agreement shall also specify the time period for
completion of the remedial action; the period shall be no longer than the minimum period
necessary to complete the action.
§ 60-300.63 Violation of conciliation agreements.
(a) When OFCCP believes that a conciliation agreement has been violated, the
following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth the violation alleged and
summarizing the supporting evidence. The contractor shall have 15 days from receipt of
the notice to respond, except in those cases in which OFCCP asserts that such a delay
would result in irreparable injury to the employment rights of affected employees or
applicants.
(2) During the 15-day period the contractor may demonstrate in writing that it has not
violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result in irreparable injury
to the employment rights of affected employees or applicants, enforcement proceedings
may be initiated immediately without proceeding through any other requirement
contained in this chapter.
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(c) In any proceedings involving an alleged violation of a conciliation agreement
OFCCP may seek enforcement of the agreement itself and shall not be required to present
proof of the underlying violations resolved by the agreement.
§ 60-300.64 Show cause notices.
When the Director has reasonable cause to believe that the contractor has violated the
Act or this part, he or she may issue a notice requiring the contractor to show cause,
within 30 days, why monitoring, enforcement proceedings or other appropriate action to
ensure compliance should not be instituted. The issuance of such a notice is not a
prerequisite to instituting enforcement proceedings (see § 60-300.65).
§ 60-300.65 Enforcement proceedings.
(a) General. (1) If a compliance evaluation, complaint investigation or other review by
OFCCP finds a violation of the Act or this part, and the violation has not been corrected
in accordance with the conciliation procedures in this part, or OFCCP determines that
referral for consideration of formal enforcement (rather than settlement) is appropriate,
OFCCP may refer the matter to the Solicitor of Labor with a recommendation for the
institution of enforcement proceedings to enjoin the violations, to seek appropriate relief,
and to impose appropriate sanctions, or any of the above in this sentence. OFCCP may
seek back pay and other make whole relief for aggrieved individuals identified during a
complaint investigation or compliance evaluation. Such individuals need not have filed a
complaint as a prerequisite to OFCCP seeking such relief on their behalf. Interest on
back pay shall be calculated from the date of the loss and compounded quarterly at the
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percentage rate established by the Internal Revenue Service for the underpayment of
taxes.
(2) In addition to the administrative proceedings set forth in this section, the Director
may, within the limitations of applicable law, seek appropriate judicial action to enforce
the contractual provisions set forth in § 60-300.5, including appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative enforcement proceedings the
contractor shall be provided an opportunity for a formal hearing. All hearings conducted
under the Act and this part shall be governed by the Rules of Practice for Administrative
Proceedings to Enforce Equal Opportunity Under Executive Order 11246 contained in 41
CFR part 60-30 and the Rules of Evidence set out in the Rules of Practice and Procedure
for Administrative Hearings Before the Office of Administrative Law Judges contained
in 29 CFR part 18, subpart B: Provided, That a final administrative order shall be issued
within one year from the date of the issuance of the recommended findings, conclusions
and decision of the Administrative Law Judge, or the submission of exceptions and
responses to exceptions to such decision (if any), whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate Solicitor for Civil Rights and
Labor-Management, Regional Solicitors, and Associate Regional Solicitors.
(3) For the purposes of hearings pursuant to this part, references in 41 CFR part 60-30 to
“Executive Order 11246” shall mean the Vietnam Era Veterans’ Readjustment Assistance
Act of 1974, as amended; references to “equal opportunity clause” shall mean the equal
opportunity clause published at § 60-300.5; and references to “regulations” shall mean
the regulations contained in this part.
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§ 60-300.66 Sanctions and penalties.
(a) Withholding progress payments. With the prior approval of the Director, so much of
the accrued payment due on the contract or any other contract between the Government
contractor and the Federal Government may be withheld as necessary to correct any
violations of the provisions of the Act or this part.
(b) Termination. A contract may be canceled or terminated, in whole or in part, for
failure to comply with the provisions of the Act or this part.
(c) Debarment. A contractor may be debarred from receiving future contracts for failure
to comply with the provisions of the Act or this part subject to reinstatement pursuant to §
60-300.68. Debarment may be imposed for an indefinite period, or may be imposed for a
fixed period of not less than six months but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall be afforded to a
contractor before the imposition of any sanction or penalty.
§ 60-300.67 Notification of agencies.
The Director shall ensure that the heads of all agencies are notified of any debarments
taken against any contractor.
§ 60-300.68 Reinstatement of ineligible contractors.
(a) Application for reinstatement. A contractor debarred from further contracts for an
indefinite period under the Act may request reinstatement in a letter filed with the
Director at any time after the effective date of the debarment; a contractor debarred for a
fixed period may make such a request following the expiration of six months from the
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effective date of the debarment. In connection with the reinstatement proceedings, all
debarred contractors shall be required to show that they have established and will carry
out employment policies and practices in compliance with the Act and this part.
Additionally, in determining whether reinstatement is appropriate for a contractor
debarred for a fixed period, the Director also shall consider, among other factors, the
severity of the violation which resulted in the debarment, the contractor’s attitude
towards compliance, the contractor’s past compliance history, and whether the
contractor’s reinstatement would impede the effective enforcement of the Act or this part.
Before reaching a decision, the Director may conduct a compliance evaluation of the
contractor and may require the contractor to supply additional information regarding the
request for reinstatement. The Director shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a decision denying a request for
reinstatement, the contractor may file a petition for review of the decision with the
Secretary. The petition shall set forth the grounds for the contractor’s objections to the
Director’s decision. The petition shall be served on the Director and the Associate
Solicitor for Civil Rights and Labor-Management and shall include the decision as an
appendix. The Director may file a response within 14 days to the petition. The Secretary
shall issue the final agency decision denying or granting the request for reinstatement.
Before reaching a final decision, the Secretary may issue such additional orders
respecting procedure as he or she finds appropriate in the circumstances, including an
order referring the matter to the Office of Administrative Law Judges for an evidentiary
hearing where there is a material factual dispute that cannot be resolved on the record
before the Secretary.
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§ 60-300.69 Intimidation and interference.
(a)The contractor shall not harass, intimidate, threaten, coerce, or discriminate against
any individual because the individual has engaged in or may engage in any of the
following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation, compliance evaluation,
hearing, or any other activity related to the administration of the Act or any other Federal,
state or local law requiring equal opportunity for protected veterans;
(3) Opposing any act or practice made unlawful by the Act or this part or any other
Federal, state or local law requiring equal opportunity for protected veterans, or
(4) Exercising any other right protected by the Act or this part.
(b) The contractor shall ensure that all persons under its control do not engage in such
harassment, intimidation, threats, coercion or discrimination. The sanctions and penalties
contained in this part may be exercised by the Director against any contractor who
violates this obligation.
§ 60-300.70 Disputed matters related to compliance with the Act.
The procedures set forth in the regulations in this part govern all disputes relative to the
contractor’s compliance with the Act and this part. Any disputes relating to issues other
than compliance, including contract costs arising out of the contractor’s efforts to
comply, shall be determined by the disputes clause of the contract.
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Subpart E—Ancillary Matters
§ 60-300.80 Recordkeeping.
(a) General requirements. Except as set forth in paragraph (b) of this section, any
personnel or employment record made or kept by the contractor shall be preserved by the
contractor for a period of two years from the date of the making of the record or the
personnel action involved, whichever occurs later. However, if the contractor has fewer
than 150 employees or does not have a Government contract of at least $150,000, the
minimum record retention period will be one year from the date of the making of the
record or the personnel action involved, whichever occurs later, except as set forth in
paragraph (b) of this section. Such records include, but are not necessarily limited to,
records relating to requests for reasonable accommodation; the results of any physical
examination; job advertisements and postings; applications and resumes; tests and test
results; interview notes; and other records having to do with hiring, assignment,
promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of
compensation, and selection for training or apprenticeship. In the case of involuntary
termination of an employee, the personnel records of the individual terminated shall be
kept for a period of two years from the date of the termination, except that contractors
that have fewer than 150 employees or that do not have a Government contract of at least
$150,000 shall keep such records for a period of one year from the date of the
termination. Where the contractor has received notice that a complaint of discrimination
has been filed, that a compliance evaluation has been initiated, or that an enforcement
action has been commenced, the contractor shall preserve all personnel records relevant
to the complaint, compliance evaluation or action until final disposition of the complaint,
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compliance evaluation or action. The term personnel records relevant to the complaint,
compliance evaluation or action would include, for example, personnel or employment
records relating to the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person, and application forms or test
papers completed by an unsuccessful applicant and by all other candidates for the same
position as that for which the aggrieved person applied and was rejected.
(b) Records with three-year retention requirement. Records required by §§ 60-
300.44(f)(4), 60-300.44(k), and 60-300.45(c) shall be maintained by all contractors for a
period of three years from the date of the making of the record.
(c) Failure to preserve records. Failure to preserve complete and accurate records as
required by this part constitutes noncompliance with the contractor’s obligations under
the Act and this part. Where the contractor has destroyed or failed to preserve records as
required by this section, there may be a presumption that the information destroyed or not
preserved would have been unfavorable to the contractor: Provided, That this
presumption shall not apply where the contractor shows that the destruction or failure to
preserve records results from circumstances that are outside of the contractor’s control.
(d) The requirements of this section shall apply only to records made or kept on or after
the date that the Office of Management and Budget has cleared the requirements.
§ 60-300.81 Access to records.
Each contractor shall permit access during normal business hours to its places of
business for the purpose of conducting on-site compliance evaluations and complaint
investigations and inspecting and copying such books, accounts, and records, including
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electronic records, and any other material OFCCP deems relevant to the matter under
investigation and pertinent to compliance with the Act or this part. Contractors must also
provide OFCCP access to these materials, including electronic records, off-site for
purposes of conducting compliance evaluations and complaint investigations. Upon
request, the contractor must provide OFCCP information about all format(s), including
specific electronic formats, in which the contractor maintains its records and other
information. The contractor must provide records and other information in any of the
formats in which they are maintained, as selected by OFCCP. Information obtained in
this manner shall be used only in connection with the administration of the Act and in
furtherance of the purposes of the Act. OFCCP will treat records provided by the
contractor to OFCCP under this section as confidential to the maximum extent the
information is exempt from public disclosure under the Freedom of Information Act, 5
U.S.C. 552.
§ 60-300.82 Labor organizations and recruiting and training agencies.
(a) Whenever performance in accordance with the equal opportunity clause or any
matter contained in the regulations in this part may necessitate a revision of a collective
bargaining agreement, the labor organizations which are parties to such agreement shall
be given an adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through contractors, subcontractors,
local officials, the Department of Veterans Affairs, vocational rehabilitation facilities,
and all other available instrumentalities, to cause any labor organization, recruiting and
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training agency or other representative of workers who are employed by a contractor to
cooperate with, and to assist in, the implementation of the purposes of the Act.
§ 60-300.83 Rulings and interpretations.
Rulings under or interpretations of the Act and this part shall be made by the Director.
§ 60-300.84 Responsibilities of appropriate employment service delivery system.
By statute, appropriate employment service delivery systems are required to refer
qualified protected veterans to fill employment openings listed by contractors with such
appropriate employment delivery systems pursuant to the mandatory job listing
requirements of the equal opportunity clause and are required to give priority to protected
veterans in making such referrals. The employment service delivery systems shall
provide OFCCP, upon request, information pertinent to whether the contractor is in
compliance with the mandatory job listing requirements of the equal opportunity clause.
Appendix A to Part 60-300--Guidelines On a Contractor’s Duty To Provide
Reasonable Accommodation
The guidelines in this appendix are in large part derived from, and are consistent with,
the discussion regarding the duty to provide reasonable accommodation contained in the
Interpretive Guidance on Title I of the Americans with Disabilities Act (ADA) set out as
an appendix to the regulations issued by the Equal Employment Opportunity Commission
(EEOC) implementing the ADA (29 CFR part 1630). Although the following discussion
is intended to provide an independent “free-standing” source of guidance with respect to
the duty to provide reasonable accommodation under this part, to the extent that the
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EEOC appendix provides additional guidance which is consistent with the following
discussion, it may be relied upon for purposes of this part as well. See § 60-300.1(c).
Contractors are obligated to provide reasonable accommodation and to take affirmative
action. Reasonable accommodation under VEVRAA, like reasonable accommodation
required under section 503 and the ADA, is a part of the nondiscrimination obligation.
See EEOC appendix cited in this paragraph. Affirmative action is unique to VEVRAA
and section 503, and includes actions above and beyond those required as a matter of
nondiscrimination. An example of this is the requirement discussed in paragraph 2 of
this appendix that a contractor shall make an inquiry of a disabled veteran who is having
significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to the known physical
or mental limitations of an “otherwise qualified” disabled veteran, unless the contractor
can demonstrate that the accommodation would impose an undue hardship on the
operation of its business. As stated in § 60-300.2(s), a disabled veteran is qualified if he
or she has the ability to perform the essential functions of the position with or without
reasonable accommodation. A contractor is required to make a reasonable
accommodation with respect to its application process if the disabled veteran is qualified
with respect to that process. One is “otherwise qualified” if he or she is qualified for a
job, except that, because of a disability, he or she needs a reasonable accommodation to
be able to perform the job’s essential functions.
2. Although the contractor would not be expected to accommodate disabilities of which
it is unaware, the contractor has an affirmative obligation to provide a reasonable
accommodation for applicants and employees who are known to be disabled veterans. As
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stated in § 60-300.42(b) (see also Appendix B of this part), the contractor is required to
invite applicants who have been provided an offer of employment, before they are placed
on the contractor’s payroll, to indicate whether they are a disabled veteran who may be
protected by the Act. Section 60-300.42(d) further provides that the contractor must seek
the advice of disabled veterans who “self-identify” in this way as to reasonable
accommodation. Moreover, § 60-300.44(d) provides that if an employee who is a known
disabled veteran is having significant difficulty performing his or her job and it is
reasonable to conclude that the performance problem may be related to the disability, the
contractor is required to confidentially inquire whether the problem is disability related
and if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in the way things are
customarily done that enables a disabled veteran to enjoy equal employment
opportunities. Equal employment opportunity means an opportunity to attain the same
level of performance, or to enjoy the same level of benefits and privileges of
employment, as are available to the average similarly situated employee without a
disability. Thus, for example, an accommodation made to assist an employee who is a
disabled veteran in the performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The accommodation,
however, does not have to be the “best” accommodation possible, so long as it is
sufficient to meet the job-related needs of the individual being accommodated. There are
three areas in which reasonable accommodations may be necessary: (1) accommodations
in the application process; (2) accommodations that enable employees who are disabled
veterans to perform the essential functions of the position held or desired; and (3)
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accommodations that enable employees who are disabled veterans to enjoy equal benefits
and privileges of employment as are enjoyed by employees without disabilities.
4. The term “undue hardship” refers to any accommodation that would be unduly costly,
extensive, substantial, or disruptive, or that would fundamentally alter the nature or
operation of the contractor’s business. The contractor’s claim that the cost of a particular
accommodation will impose an undue hardship requires a determination of which
financial resources should be considered--those of the contractor in its entirety or only
those of the facility that will be required to provide the accommodation. This inquiry
requires an analysis of the financial relationship between the contractor and the facility in
order to determine what resources will be available to the facility in providing the
accommodation. If the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the accommodation if the
funding is available from another source, e.g., the Department of Veterans Affairs or a
state vocational rehabilitation agency, or if Federal, state or local tax deductions or tax
credits are available to offset the cost of the accommodation. In the absence of such
funding, the disabled veteran must be given the option of providing the accommodation
or of paying that portion of the cost which constitutes the undue hardship on the
operation of the business.
5. The definition for “reasonable accommodation” in § 60-300.2(t) lists a number of
examples of the most common types of accommodations that the contractor may be
required to provide. There are any number of specific accommodations that may be
appropriate for particular situations. The discussion in this appendix is not intended to
provide an exhaustive list of required accommodations (as no such list would be
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feasible); rather, it is intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation is appropriate must
be made on a case-by-case basis. The contractor must consult with the disabled veteran
in deciding on the reasonable accommodation; frequently, the individual will know
exactly what accommodation he or she will need to perform successfully in a particular
job, and may suggest an accommodation which is simpler and less expensive than the
accommodation the contractor might have devised. Other resources to consult include
the appropriate state vocational rehabilitation services agency, the Equal Employment
Opportunity Commission (1-800-669-4000 (voice), 1-800-669-6820 (TTY)), the Job
Accommodation Network (JAN) operated by the Office of Disability Employment Policy
in the U.S. Department of Labor (1-800-526-7234 or 1-800-232-9675), private disability
organizations (including those that serve veterans), and other employers.
6. With respect to accommodations that can permit an employee who is a disabled
veteran to perform essential functions successfully, a reasonable accommodation may
require the contractor to, for instance, modify or acquire equipment. For the visually-
impaired, such accommodations may include providing adaptive hardware and software
for computers, electronic visual aids, Braille devices, talking calculators, magnifiers,
audio recordings and Braille or large-print materials. For persons with hearing
impairments, reasonable accommodations may include providing telephone handset
amplifiers, telephones compatible with hearing aids and text telephones (TTYs). For
persons with limited physical dexterity, the obligation may require the provision of
telephone headsets, speech activated software and raised or lowered furniture.
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7. Other reasonable accommodations of this type may include providing personal
assistants such as a reader, sign language interpreter or travel attendant, permitting the
use of accrued paid leave or providing additional unpaid leave for necessary treatment.
The contractor may also be required to make existing facilities readily accessible to and
usable by disabled veterans--including areas used by employees for purposes other than
the performance of essential job functions such as restrooms, break rooms, cafeterias,
lounges, auditoriums, libraries, parking lots and credit unions. This type of
accommodation will enable employees to enjoy equal benefits and privileges of
employment as are enjoyed by employees who do not have disabilities.
8. Another of the potential accommodations listed in § 60-300.2(t) is job restructuring.
This may involve reallocating or redistributing those nonessential, marginal job functions
which a qualified disabled veteran cannot perform to another position. Accordingly, if a
clerical employee who is a disabled veteran is occasionally required to lift heavy boxes
containing files, but cannot do so because of a disability, this task may be reassigned to
another employee. The contractor, however, is not required to reallocate essential
functions, i.e., those functions that the individual who holds the job would have to
perform, with or without reasonable accommodation, in order to be considered qualified
for the position. For instance, the contractor which has a security guard position which
requires the incumbent to inspect identity cards would not have to provide a blind
disabled veteran with an assistant to perform that duty; in such a case, the assistant would
be performing an essential function of the job for the disabled veteran. Job restructuring
may also involve allowing part-time or modified work schedules. For instance, flexible
or adjusted work schedules could benefit disabled veterans who cannot work a standard
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schedule because of the need to obtain medical treatment, or disabled veterans with
mobility impairments who depend on a public transportation system that is not accessible
during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a vacant position. In
general, reassignment should be considered only when accommodation within the
disabled veteran’s current position would pose an undue hardship. Reassignment is not
required for applicants. However, in making hiring decisions, contractors are encouraged
to consider applicants who are known disabled veterans for all available positions for
which they may be qualified when the position(s) applied for is unavailable.
Reassignment may not be used to limit, segregate, or otherwise discriminate against
employees who are disabled veterans by forcing reassignments to undesirable positions
or to designated offices or facilities. Employers should reassign the individual to an
equivalent position in terms of pay, status, etc., if the individual is qualified, and if the
position is vacant within a reasonable amount of time. A “reasonable amount of time”
must be determined in light of the totality of the circumstances.
10. The contractor may reassign an individual to a lower graded position if there are no
accommodations that would enable the employee to remain in the current position and
there are no vacant equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the reassigned
disabled veteran at the salary of the higher graded position, and must do so if it maintains
the salary of reassigned employees who are not disabled veterans. It should also be noted
that the contractor is not required to promote a disabled veteran as an accommodation.
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11. With respect to the application process, reasonable accommodations may include the
following: (1) providing information regarding job vacancies in a form accessible to
disabled veterans who are vision or hearing impaired, e.g., by making an announcement
available in braille, in large print, or on computer disc, or by responding to job inquiries
via TTYs; (2) providing readers, sign language interpreters and other similar assistance
during the application, testing and interview process; (3) appropriately adjusting or
modifying employment-related examinations, e.g., extending regular time deadlines,
allowing a disabled veteran who is blind or has a learning disorder such as dyslexia to
provide oral answers for a written test, and permitting an applicant, regardless of the
nature of his or her ability, to demonstrate skills through alternative techniques and
utilization of adapted tools, aids and devices; and (4) ensuring a disabled veteran with a
mobility impairment full access to testing locations such that the applicant’s test scores
accurately reflect the applicant’s skills or aptitude rather than the applicant’s mobility
impairment.
Appendix B to Part 60-300--Sample Invitation to Self-Identify
[Sample Invitation to Self-Identify]
1. This employer is a Government contractor subject to the Vietnam Era Veterans’
Readjustment Assistance Act of 1974, as amended by the Jobs for Veterans Act of 2002,
38 U.S.C. 4212 (VEVRAA), which requires Government contractors to take affirmative
action to employ and advance in employment: (1) disabled veterans; (2) recently
separated veterans; (3) active duty wartime or campaign badge veterans; and (4) Armed
Forces service medal veterans. These classifications are defined as follows:
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A “disabled veteran” is one of the following:
a veteran of the U.S. military, ground, naval or air service who is
entitled to compensation (or who but for the receipt of military
retired pay would be entitled to compensation) under laws
administered by the Secretary of Veterans Affairs; or
a person who was discharged or released from active duty because
of a service-connected disability.
A “recently separated veteran” means any veteran during the three-year period
beginning on the date of such veteran’s discharge or release from active duty
in the U.S. military, ground, naval, or air service.
An “active duty wartime or campaign badge veteran” means a veteran who
served on active duty in the U.S. military, ground, naval or air service during a
war, or in a campaign or expedition for which a campaign badge has been
authorized under the laws administered by the Department of Defense.
An “Armed forces service medal veteran” means a veteran who, while serving
on active duty in the U.S. military, ground, naval or air service, participated in
a United States military operation for which an Armed Forces service medal
was awarded pursuant to Executive Order 12985.
Protected veterans may have additional rights under USERRA - the Uniformed Services
Employment and Reemployment Rights Act. In particular, if you were absent from
employment in order to perform service in the uniformed service, you may be entitled to
be reemployed by your employer in the position you would have obtained with
reasonable certainty if not for the absence due to service. For more information, call the
U.S. Department of Labor’s Veterans Employment and Training Service (VETS), toll-
free, at 1-866-4-USA-DOL.
2. [THE FOLLOWING TEXT SHOULD BE USED WHEN EXTENDING THE “PRE-
OFFER” INVITATION AS REQUIRED BY 41 CFR 60-300.42(a). THE
DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF PROTECTED
VETERANS SET FORTH IN PARAGRAPH 1 MUST ACCOMPANY THIS SELF-
IDENTIFICATION REQUEST.] If you believe you belong to any of the categories of
protected veterans listed above, please indicate by checking the appropriate box below.
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As a Government contractor subject to VEVRAA, we request this information in order to
measure the effectiveness of the outreach and positive recruitment efforts we undertake
pursuant to VEVRAA.
[ ] I IDENTIFY AS ONE OR MORE OF THE CLASSIFICATIONS OF
PROTECTED VETERAN LISTED ABOVE
[ ] I AM NOT A PROTECTED VETERAN
[THE FOLLOWING TEXT SHOULD BE USED IF REQUIRED TO EXTEND THE
“POST-OFFER” INVITATION DESCRIBED IN 41 CFR 60-300.42(b). THE
DEFINITIONS OF THE SEPARATE CLASSIFICATIONS OF PROTECTED
VETERAN INCLUDED IN THE POST-OFFER INVITATION MUST ACCOMPANY
THIS SELF-IDENTIFICATION REQUEST.]
As a Government contractor subject to VEVRAA, we are required to submit a report to
the United States Department of Labor each year identifying the number of our
employees belonging to each specified “protected veteran” category. If you believe you
belong to any of the categories of protected veterans listed above, please indicate by
checking the appropriate box below.
I BELONG TO THE FOLLOWING CLASSIFICATIONS OF PROTECTED
VETERANS (CHOOSE ALL THAT APPLY):
[ ] DISABLED VETERAN
[ ] RECENTLY SEPARATED VETERAN
[ ] ACTIVE WARTIME OR CAMPAIGN BADGE VETERAN
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[ ] ARMED FORCES SERVICE MEDAL VETERAN
____________________________________________________________
[ ] I am a protected veteran, but I choose not to self-identify the
classifications to which I belong.
[ ] I am NOT a protected veteran.
If you are a disabled veteran it would assist us if you tell us whether there are
accommodations we could make that would enable you to perform the essential functions
of the job, including special equipment, changes in the physical layout of the job, changes
in the way the job is customarily performed, provision of personal assistance services or
other accommodations. This information will assist us in making reasonable
accommodations for your disability.
3. Submission of this information is voluntary and refusal to provide it will not subject
you to any adverse treatment. The information provided will be used only in ways that
are not inconsistent with the Vietnam Era Veterans’ Readjustment Assistance Act of
1974, as amended.
4. The information you submit will be kept confidential, except that (i) supervisors and
managers may be informed regarding restrictions on the work or duties of disabled
veterans, and regarding necessary accommodations; (ii) first aid and safety personnel
may be informed, when and to the extent appropriate, if you have a condition that might
require emergency treatment; and (iii) Government officials engaged in enforcing laws
administered by the Office of Federal Contract Compliance Programs, or enforcing the
Americans with Disabilities Act, may be informed.
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5. [The contractor should here insert a brief provision summarizing the relevant portion
of its affirmative action program.]
Appendix C to Part 60–300—Review of Personnel Processes
The following is a set of procedures which contractors may use to meet the requirements
of §60–300.44(b):
1. The application or personnel form of each known applicant who is a protected veteran
should be annotated to identify each vacancy for which the applicant was considered, and
the form should be quickly retrievable for review by the Department of Labor and the
contractor’s personnel officials for use in investigations and internal compliance
activities.
2. The personnel or application records of each known protected veteran should include
(i) the identification of each promotion for which the protected veteran was considered,
and (ii) the identification of each training program for which the protected veteran was
considered.
3. In each case where an employee or applicant who is a protected veteran is rejected for
employment, promotion, or training, the contractor should prepare a statement of the
reason as well as a description of the accommodations considered (for a rejected disabled
veteran). The statement of the reason for rejection (if the reason is medically related), and
the description of the accommodations considered, should be treated as confidential
medical records in accordance with §60–300.23(d). These materials should be available
to the applicant or employee concerned upon request.
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4. Where applicants or employees are selected for hire, promotion, or training and the
contractor undertakes any accommodation which makes it possible for him or her to
place a disabled veteran on the job, the contractor should make a record containing a
description of the accommodation. The record should be treated as a confidential medical
record in accordance with §60–300.23(d).
